Friday, 27 June 2014

New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

Steve Peers

Introduction

A new EU Regulation, published today in the EU’s Official
Journal, sets out new rules on maritime surveillance and rescue operations
coordinated by Frontex, the EU’s borders agency. What effect will these rules
have on reducing the tragic death toll of migrants in the Mediterranean? And
what will happen to the asylum claims of those rescued or intercepted in the
high seas?

These new rules are a response to the continued argument that the EU must
bear at least some of the blame for the deaths of migrants in the Mediterranean.
Furthermore, Member States’ authorities and Frontex have often been blamedfor violent behaviour or ‘push-backs’: the forced return of migrants’ vessels
to unsafe countries, which were condemned by the European Court of Human Rights
in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010,
in the form of a Decisionimplementing the Schengen Borders Code,
which was annulled by theCourt of Justice of the European Union
(CJEU) after the European Parliament (EP) challenged it on procedural grounds.
According to the Court, an EU act concerning human rights and coercive measures
had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to proposea
legislative measure, which it did in April 2013. At first, a hard-line group of
Member States opposedmost of the provisions in this proposal concerning
search and rescue and disembarkation (ie the rules on the destination of
migrants who were intercepted and rescued), even after the particularly tragic
loss of 300 migrants’ lives in autumn 2013. However, these Member States
relented, and the European Parliament also pressed to retain and improve upon
the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on
17 July. But does it mean that the EU will be doing enough to address the loss
of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an
assessment of the issue of the accountability of Frontex. It is an updated and
amended version of a previous Statewatch analysis on the new rules.

Search and rescue

The previous Decision contained binding rules on interception, and
non-binding rules on search and rescue and disembarkation. However, the CJEU
said that even the latter category of rules was binding. As noted above, a
group of Member States wanted to water down (as it were) most of these rules in
the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s
behest) the Commission’s detailed proposal on this issue, including
particularly the definition of whether vessels can be considered in a state of
alert, uncertainty or distress. Provided that sinking vessels are detected in
time and that these rules are properly applied, the Regulation should therefore
ensure that migrants are rescued from drowning wherever possible.

Protection and
disembarkation rules

On the other hand, the situation is more complex as regards the rules on
protection of those migrants who are potentially at risk of persecution,
torture or other forms of ill-treatment in their country of origin (or another
country).

The core of the new Regulation is Article 4 – the protection against
non-refoulement (removal to an unsafe country) and protection of fundamental
rights. Article 4(1) states that no-one can be ‘disembarked in, forced to
enter, conducted to or otherwise handed over to’ an unsafe country as further
defined in the Regulation. Compared to the 2010 Decision, the Commission
proposal, and the Council position, the EP successfully insisted on adding the
words ‘forced to enter’ and ‘conducted to’, which clearly covers push-backs.

What is an unsafe country? Article 4(1) goes on to define two
situations: (a) a serious risk of subjection of the migrant to the death
penalty, torture, persecution or other inhuman or degrading treatment; and (b)
the migrant’s life or freedom would be threatened on the grounds set out in the
Geneva Convention on Refugees (race, religion, nationality, political opinion
or membership of a social group), as well as sexual orientation. Also, a ‘chain
refoulement’ is banned: a migrant cannot be handed over to a country which is
safe in itself, but which would hand the migrant over to an unsafe country.

Compared to the criteria in EU asylum law (the ‘Qualification Directive’), the first category includes two of the grounds concerning the
grant of ‘subsidiary protection’ (ie protection for those who do not qualify as
refugees under the Geneva Convention): the death penalty and torture or other
inhuman or degrading treatment. It does not include the third category,
concerning ill-treatment in the event of armed conflict; however, it does
include ‘persecution’, without further definition. The second category is
identical to Article 33(1) of the Geneva Convention, except that it does not
include the exception in Article 33(2) of that Convention for persons posing
security threats et al., and it adds the grounds of ‘sexual orientation’ to
those referred to in the Convention. However, the CJEU has confirmed that homosexuals can form a ‘particular social group’ under the EU’s
Qualification Directive.

The 2010 Decision referred simply to ‘non-refoulement’ without any
further explanation in the main text, while the 2013 proposal (and the
Council’s position) referred only to the first category of grounds, without the
general reference to ‘persecution’. So the EP clearly succeeded in
strengthening this provision.

Next, how must an unsafe country be determined? Article 4(2) states that
when considering disembarking migrants in a third country, the host Member
State (the Member State from which an operation takes place or from which it is
launched: Article 2(3)) must ‘take into account the general situation in that
third country’, and cannot disembark or otherwise force to enter, conduct to or
hand over if the host Member State or other participating Member States ‘are
aware or ought to be aware’ that such a State presents such a risk. The EP
insisted on adding the references to forcing to enter, conducting to or handing
over.

The EP also obtained an amendment further clarifying the sources of
information to take into account – a ‘broad range’, including other Member
States, EU bodies, agencies and offices and international bodies. The Member States
‘may’ take into account existing agreements and projects carried out using EU
funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation
specifies that (in accordance with the Hirsi
judgment) before disembarking or otherwise conducting, etc the migrants to a
third State, taking into account the general situation in that State, the
Member States’ units shall ‘use all means’ to identify the migrants, assess
their circumstances, inform them of their destination and give them an
opportunity to object on grounds of the non-refoulement rule. These obligations
are subject to an override in the interests of the safety of all the persons
involved (see Article 3).

The operational plan must ‘where necessary’ provide for medical staff,
interpreters, legal advisers and other relevant experts on shore. Also, the
annual reports which Frontex must provide on the application of the Regulation
must include ‘further details’ on cases of disembarkation in third States, as
regards the application of the relevant criteria. These provisions were
insisted upon by the EP, in particular the reference to ‘legal advisers’, but
there is ‘wiggle room’ conferred by the words ‘where necessary’ and ‘use all
means’.

There are also limits on the exchange of personal data with third
countries, an obligation to respect human dignity, and rules on training of
staff.

The protection rules cannot be separated from the rules on
disembarkation of migrants. According to Article 10, there are three scenarios.
First, if migrants are intercepted in the territorial sea or contiguous zone
(the waters adjacent to the territorial sea, according to international law:
see the definition in Article 2(13)) of a Member State, then they must be disembarked
in the coastal Member State, ie the Member State in whose territorial waters or
contiguous zone the operation takes place (definition in Article 2(14)). But
this is subject to a crucial exception: it is possible under the Regulation
that a vessel that has made it this close to a Member State could still be
ordered to alter course towards another destination.

Secondly, if migrants are intercepted in the high seas, they may be
disembarked in the country from which they are assumed to have departed,
subject to the non-refoulement rules in the Regulation. If that is not
possible, then disembarkation ‘shall’ take place in the host Member State.

Thirdly, in the event of a search and rescue, the migrants shall be
disembarked in a place of safety. If that is not possible, then they shall be
disembarked in the host Member State.

These provisions raise many important questions. First of all, it should
have been clearly specified that the general non-refoulement rule takes
priority over any possibility of disembarkation in a third State.

Secondly, as correctly noted in the preamble to the Regulation, the EU’s
asylum legislation applies to anyone in the territorial waters of the EU. This
means that, in accordance with that legislation, once an asylum application is
made in the territorial waters, the asylum applicant cannot be removed to a
third State before there is a decision on the asylum application in accordance
with that legislation, save for some limited exceptions not relevant here. The
obvious corollary of this is that asylum-seekers who make their application in the
territorial waters must be disembarked on the territory of the Member State
concerned, since it is unlikely that it will be practical to keep them on board
a ship for the entire duration of a full asylum procedure. However, the main
text of the Regulation does not reflect the wording of this legislation, since
it provides for the possibility of persons intercepted or rescued in the
territorial waters to be removed to third countries.

Thirdly, when migrants are disembarked on the territory of a Member State,
an awkward question could arise: is that Member State safe? While the specific
non-refoulement rules in Article 4(2) and (3) refer to the safety of third countries, the general rule in
Article 4(1) refers to countries in general. The European Court of Human Rights
and the EU’s Court of Justice have already both concluded that Greece in effect
fails the standard set out in Article 4, and litigation in some Member States
is also challenging the safety of Italy. So there could be a clash between the
non-refoulement rule and the obligation to disembark in a Member State which is
the host State, coastal State or place of safety, or in the territorial waters
of which the applications were made.

Fourthly, as for those intercepted or rescued in the high seas or the
contiguous zone (the Regulation does not contemplate the scenario of migrants
being intercepted in the territorial waters of third States), the bulk of the
EU’s asylum legislation does not apply. However, the EU’s qualification
Directive does – since there is nothing in the text of that Directive to limit
its territorial scope. But the wording of the Regulation is confusing in this
regard, since it does not refer to the detailed text of that Directive but
rather to general standards on non-refoulement, which are different from that
Directive in some respects, as noted above (the omission of persons fleeing
conflict, for instance).

Having said that, EU rules on asylum procedures and reception conditions do not apply to asylum-seekers who are intercepted or rescued in
the high seas or the contiguous zone, and in that case the rules in the
Regulation would apply. In effect, the rules summarised above provide for a
highly simplified process – which might be dubbed the ‘maritime asylum
procedure’ – for such cases. As noted above, though, the words ‘where
necessary’ and ‘use all means’ arguably give Member States considerable
flexibility not to apply these rules fully, and these rules are
(understandably) subject to the requirement to give priority to the safety of
all persons. This should mean that in the event of a risk to the safety of
persons, if the application of the non-refoulement rule has not yet been
assessed, the migrants must be taken to a (safe) Member State to avoid
prejudicing the outcome of that assessment. Once the migrants enter a Member
State’s territorial waters, EU asylum law will apply fully (arguably it applies
even if the application was made before
the vessel entered those waters; if not, then there is nothing to stop the
asylum-seeker making a renewed application for asylum once the vessel is in
those waters).

Since most EU asylum law does not apply to the high seas, the EU’s
Dublin rules on asylum responsibility do not apply either, and it is an open
question whether they would apply where a person made an application on the
high seas and was then brought to the territorial waters of a Member State
while the application was being considered. In order to limit somewhat the huge
impact of these Dublin rules on the coastal Mediterranean States, EU Member
States could agree between themselves on new rules for responsibility for
asylum-seekers who make their application on the high seas. If necessary, this
could take the form of an amendment to the Dublin rules, added to the proposed new amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies
(recital 7) that a shipmaster and crew should not face criminal sanctions for
rescuing migrants and bringing them to a place of safety. This provision is
welcome, but it would be better if the EU legislation on criminal
sanctions for facilitating irregular migration were amended to confirm that
there is no criminal liability in such cases.

Accountability of
Frontex (and national authorities)

Article 13 of the Regulation, which was inserted at the EP’s insistence,
states that Frontex must make annual reports on the application of the
Regulation, including on Frontex’s own procedures and information on the
application of the Regulation in practice, including ‘detailed information on
compliance with fundamental rights and the impact on those rights, and any
incidents which may have taken place’. Presumably this means that these reports
will have to include full information on where migrants were disembarked and
the assessments that were made of the safety of any third countries (and Member
States) in each particular case. It would have been better to clarify the
extent of these obligations expressly, although any provision on accountability
is better than none. The EP also insisted on a recital in the preamble, which
repeats text already in the Frontex Regulation regarding Frontex
cooperation with third countries.

When the Frontex Regulation was last amended in 2011, the EP insisted on
many new provisions ensuring that Frontex would be complaint with human rights
standards, and the application of these new rules has since been examinedby the European Ombudsman. Frontex is still refusing to establish an individual
complaints procedure for migrants who believe that it has violated the rules
binding upon it, on the grounds that it only coordinates Member States’
authorities’ actions, so cannot be held directly responsible for those actions.

While it would be preferable to ensure that individuals could raise
complaints that Frontex had not complied with its obligations as regards human
rights, it is also true to say that Frontex only coordinates Member States’
authorities’ actions. In any event, those authorities take actions that are not
coordinated by Frontex. Given that (as the new Regulation itself implicitly
accepts) any control of the EU’s external border, including by means of patrols
outside a Member State’s territorial waters, is linked to the application of
the EU’s own rules on external border controls, the EU Charter of Rights is
applicable to Member States’ control of those borders. And there have been
allegations that Member States’ authorities have on some occasions been responsible
for push-backs and ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for too
long as a ‘lightning rod’ for critics of the EU’s external borders control
policy, whereas attention should have focussed more on Member States’
authorities, whether they are being coordinated by Frontex or not. The ‘right
to life’ in the European Convention of Human Rights entails, according to the
European Court of Human Rights, an obligation to hold an independent
investigation into losses of life that have arguably resulted from actions of
the authorities. So arguably the EU is under an obligation pursuant to the EU
Charter of Fundamental Rights to ensure that its Member States conduct such
investigations into losses of life which are linked to the implementation of EU
policies, in this case the EU external borders rules. Those authorities should
also be held accountable for any alleged push-backs or other ill-treatment of
migrants at the external borders.

To that end, the EU should agree upon a general framework for
independent investigations into such alleged abuses, with the results of these
investigations reported and assessed by the Commission as part of its
twice-yearly report on the Schengen system. Furthermore, it is long past time
for the Commission to stiffen its backbone and to bring infringement
proceedings against Member States where there is sufficient evidence that their
authorities are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, as its rules on search and
rescue are valuable and its provisions on protection, disembarkation and
accountability of Frontex are better than nothing at all. But the complex
interplay of the provisions of this Regulation with EU asylum law has led to
something of a ‘dog’s dinner’ of rules governing the asylum applications of
people rescued or intercepted in the Mediterranean, and the rules on the
accountability of Frontex are something of a ‘red herring’ in light of the
allegations of serious misconduct in some cases by national authorities. Finally,
the Commission’s continued unwillingness to bring infringement proceedings in
this area (and in the face of its own documented breaches of other EU
immigration and asylum law) is undermining the letter and spirit of the Charter
by allowing Member States’ authorities to think that they can violate the
Charter with impunity.

Further reading: Council of Europe Parliamentary Assembly report, June
2014